On piracy, property, and popularity

24Feb08

Not that they need any advertising, but I wanted to highlight this entry on David Bordwell and Kristin Thompson’s blog about the history of His Girl Friday. It’s a great account of how works like films outlive their initial moments, a process I’ve studied for television programs in my book using the term “cultural life” to explore the afterlife of programs like Soap and The Simpsons (of course, The Simpsons remains undead for decades!). One of the most common questions that students want to ask about media is “why was this show popular?”, as if there were a magical formula of zeitgeist and marketing to yield a popularity quotient. David’s entry shows that such questions are complicated, wrapped up historical shifts of technology, industrial practices, critical frameworks, and the like. And in this case, it hinged on an accidental failure to renew the film’s copyright (a requirement that is no longer an issue in American law).

But there’s one point from the post that I’d like to quibble with and revise a bit. David writes:

The lesson that sticks with me is this. If Columbia had renewed its copyright on schedule, would this film be so widely admired today? Scholars and the public discovered a masterpiece because they had virtually untrammeled access to it, and perhaps its gray-market status supplied an extra thrill. Thanks mainly to piracy, His Girl Friday was propelled into the canon.

My friendly quibble is with the word “piracy” – my inner Lessig takes umbrage at the use of the word to describe the public domain circulation of His Girl Friday. Once the film lapsed into the public domain, all of the resulting shoddy copies were legal and licit, not pirated. A more accurate term would be “unauthorized,” but the essence of the public domain is that making copies of a non-copyrighted work requires no authorization, approval, or payment. As far as I know, no laws were broken, no thievery was involved, and nobody was wearing eye-patches and exclaiming “arrrgh.”(Although when I raised this question to David, he mentioned that both his personal recollections of 1970s grey marketeers and this essay on film piracy from the 1970s frequently use bootlegging and piracy interchangeably.)

Despite this subtle verbiage distinction, there is a powerful detachable conclusion concerning this aspect of the post: contrary to the economic logic of copyright, making a work freely available can actually increase its value, rather than making it worthless. This is such an important point to be made – the goal of copyright is to provide an incentive to creators by offering limited monopoly rights to a work for a limited time. The initial intent was to allow works to lapse into the public domain to create another sphere of value to the culture at large through free circulation and subsequent derivative forms of creativity, research, and expression.

The case of His Girl Friday demonstrates that cultural value can be retroactively applied economically. There is no doubt that the wide circulation of the film on television and later home video enhanced the film’s reputation and inspired critics and viewers to reassess an otherwise overlooked film. That revaluation created a market for the film, which in turn made a restored print and DVD economically worth it. You can still buy a dozen different versions of the film, but the film’s lack of scarcity has made it worth enough to pony up for a high-quality authorized copy.

Ironically enough, television distribution helped revalue public domain films like His Girl Friday and It’s a Wonderful Life, but the array of television programs from the 1950s that have drifted into the public domain continue to be consigned to the bargain bin of shoddy copies – I have $2 DVDs of Dragnet and The George Burns & Gracie Allen Show sitting on my desk, made with almost unwatchable prints. Television scholars have certainly highlighted the value of these pioneering programs, but television syndication has moved on from relying on public domain filler in exchange for the conglomerated holdings of corporations like Time Warner, Viacom, NBC-Universal, and Fox.

The case of Dragnet is instructive (as my friends will attest, it always comes back to Dragnet for me!). The show was one of the landmark texts of 1950s culture, setting the norms of the cop show, defining the use of telefilm and reruns, and offering a fascinating counterpoint to homogenized suburban sitcoms and escapist Westerns more common to our cultural memory of the decade’s television fare. But most viewers today only know the vastly inferior color version of the show from the 1960s, as it was the one that lived on through Nick at Nite and TV Land (and copyright). You can easily find scattered copies of the 1950s show on bootleg DVDs, complete with scratchy prints, choppy edits, and mislabeled episode titles. So how might we leverage the public domain to increase the show’s popularity quotient and revalue Jack Webb’s masterpiece sufficiently to trigger an authorized restoration of Dragnet in all of its pseudo-noir glory? Do we need a Cahiers du Television to proclaim Jack Webb’s televisual genius?